This case is before the Authority on a petition for review
filed by the Union under section 7105(a)(2)(E) of the Federal
Service Labor-Management Relations Statute (the Statute). In
Case No. 0-NG-1803, the petition for review concerns the
negotiability of four provisions(1) of the parties' agreement
disapproved by the Agency head under section 7114(c) of the
Statute after mid-term bargaining on the implementation of the
Agency's Drug Free Federal Workplace Plan. In Case No.
0-NG-1809, the petition for review concerns the negotiability
of eight provisions(2) of the parties' mid-term agreement disapproved by the Agency head
under section 7114(c) of the Statute. In its petition for
review, the Union requested that Case No. 0-NG-1803 and Case
No. 0-NG-1809 be consolidated for decision. In the absence of
any objection by the Agency, the Union's request is granted.
The provisions in Case No. 0-NG-1809 will be renumbered
consecutively, following the provisions in Case No. 0-NG-1803.

Provision 2 provides that Employee Assistance Program
(EAP) counselors shall not perform actual drug tests. We find
that the provision is negotiable because it does not directly
interfere with management's right to assign work under section
7106(a)(2)(B) of the Statute.

The disputed portion of Provision 3 permits a Union
representative to attend the testing, provided the testing
facility allows attendance. We find that Provision 3 is
negotiable.

Provision 4 requires that personnel involved in the
collection and testing process be qualified to perform their
assigned tasks. We find that Provision 4 is inconsistent with
section 3.6 of the final Mandatory Guidelines for Federal
Workplace Drug Testing issued by the Department of Health and
Human Services (HHS), 53 Fed. Reg. 11979-89 (1988) (final
Guidelines), which are Government-wide regulations.
Consequently, we conclude that Provision 4 is nonnegotiable
under section 7117(a)(1) of the Statute.

Provision 5 states that when an employee receives a
positive test result, that employee may have a second test
conducted by another HHS certified laboratory, at Agency
expense, on a different portion of the original sample. We
find that Provision 5 is nonnegotiable because it is
inconsistent with section 2.7(e) of the final Guidelines.

Provision 6 provides that employees participating in the
Employee Assistance Program shall be granted administrative
leave for the time spent in counseling or treatment. The
provision also states that the scheduling of such leave will be
approved unless the employee's absence would cause severe
workload disruption. We find that Provision 6 is negotiable.

The disputed portion of Provision 7 requires the Agency to
provide the Union a copy of the document given to an employee
explaining the reasons for requiring the employee to undergo
drug testing based on the Agency's reasonable suspicion that
the employee uses drugs. We find that the disputed portion of
Provision 7 is negotiable.

The disputed portion of Provision 8 provides that unit
employees will be provided notice that they are entitled to
Union representation at all stages of the drug testing
procedures. We find that the portion of Provision 8 in dispute
is negotiable.

Provision 9 states that if an employee being tested is not
able to provide a sufficient volume of urine, the employee may
return the next day to complete the specimen. We find that the
provision is inconsistent with section 2.2(f)(10) of the final
Guidelines, which are Government-wide regulations. Therefore,
the provision is nonnegotiable under section 7117(a)(1) of the
Statute.

Provision 10 would insulate from discipline employees who
voluntarily admit their drug use, complete counseling or an
employee assistance program, and thereafter, refrain from drug
use. Because the provision does not preclude management from
disciplining employees for conduct resulting from drug use, we
find that Provision 10 is negotiable.

II. Provision 2

Section 10

The Employer has determined that individuals
serving as EAP counselors shall not perform
actual drug testing, but shall only be used as
part of an advisory, referral, and counseling
program to supplement the Bureau's Drug Testing
Program.

A. Positions of the Parties

1. Agency

The Agency contends that Provision 2 directly
interferes with management's right to assign work under
section 7106(a)(2)(B) because the provision would prevent
the Agency from assigning EAP counselors to perform actual
drug testing. The Agency acknowledges that the provision
is consistent with Federal Personnel Manual (FPM) Letter
792-16 (paragraph 7.d.(6), which provides guidance to
agencies that EAP counselors should not be involved in the
collection or samples or in reporting results of the
tests), but asserts that provisions that are nonnegotiable
under section 7106(a) do not become negotiable based on management actions. (3) Statement of Position at 2-3.

The Agency also argues that Provision 2 directly
interferes with management's right, under section
7106(a)(2)(B), to determine the personnel who would conduct
Agency operations. Id. at 3. The Agency cites Defense
Logistics Agency Council of AFGE Locals, AFL-CIO and
Department of Defense, Defense Logistics Agency, 24 FLRA
367 (1986), in which the Authority found that a proposal
precluding management from assigning supervisory tasks to
contractors directly interfered with management's right to
determine the personnel by which agency operations will be
conducted. The Agency notes that the Authority found the
proposal nonnegotiable notwithstanding the fact that the
proposal reflected existing regulatory limitations because
the Authority concluded that incorporating those
limitations in a contract would bind management for the
life of the contract even if the regulations were changed.

The Agency contends that Provision 2 "is not saved by
the fact that it states 'The Employer has determined' not
to assign such duties." Id. The Agency argues that there
is a "'crucial difference between management, as an
exercise of its statutory rights under section 7106(a),
unilaterally adopting matters proposed by the [u]nion and,
on the other hand, requiring management to negotiate with
the [u]nion over the inclusion of those same matters in a
collective bargaining agreement.'" Id. (quotingPatent
Office Professional Association and Patent and Trademark
Office, Department of Commerce, 25 FLRA 384, 406 (1987)
(Patent and Trademark Officer)), aff'd mem. as to other
matters sub nom.Patent Office Professional Association v.
FLRA, No. 87-1135 (D.C. Cir. Mar. 30, 1988). According to
the Agency, if a particular management determination
constitutes an exercise of a management right under section
7106(a), management cannot be required to negotiate over
that matter because inclusion of the matter in the
collective bargaining agreement would bind management for
the life of the agreement and would preclude management
from changing that determination.

2. Union

The Union states that Provision 2 means that EAP
counselors, who are not Agency employees, shall not conduct
actual drug testing on bargaining unit employees. Petition
for Review at 2.

The Union states that in a Memorandum of Agreement
(see appendix to this decision), the parties have agreed
that wherever the phrase "the Employer has determined"
appears in an agreement, it will be interpreted to mean
that management has the unilateral right to change the
policy on the matter at any time, as long as management
bargains over the impact and implementation of the change.
Union's Response at 2. According to the Union, the
Agency's rights under the agreed-upon phrase "are no
different than if the language were not in the contract and
[the Agency] wished to change a substantively nonnegotiable
policy." Id. The Union concludes that the parties'
agreement renders the Agency's allegation of
nonnegotiability "[u]nsupportable." Id.

The Union notes that the Agency cites no precedent
for its position and that the Patent and Trademark Office
case does not involve the phrase "the Employer has
determined." The Union concludes that the Agency's
interpretation of the provision ignores the parties'
agreement and is contrary to "standard contract
interpretation practices." Id. at 3.

B. Analysis and Conclusions

For the following reasons, we find that Provision 2
is negotiable.

Provision 2 states that "[t]he Employer has
determined" that EAP counselors will not be used to conduct
drug tests. Based on the parties' Memorandum of Agreement
as to the meaning and effect of phrases such as "the
Employer has determined" when used in the parties'
contracts, we find that Provision 2 simply memorializes,
"for informational purposes," the Agency's unilateral
determination that it will not use EAP counselors to
perform drug tests. See the Appendix to this decision.
That is, consistent with the parties' Memorandum of
Agreement, the Agency remains free at any time during the
life of the contract to determine that it will use EAP
counselors to conduct drug tests.

By agreeing to the use of the phrase "the Employer
has determined", the Union acknowledges that the
determination of whether to use EAP counselors to conduct
drug tests constitutes an exercise of a management right.
Furthermore, the Union agrees that the Agency can change
that decision at any time, as long as it gives appropriate
notice to the Union of the change. Consequently, we agree
with the Union that, as worded, the provision would not
prevent the Agency from deciding to use EAP counselors to
conduct drug tests.

The Agency has misinterpreted Patent and Trademark
Office. The circumstances of that case are distinguishable
from the circumstances of the instant case. The proposal
at issue in Patent and Trademark Office would have included
portions of the agency's performance appraisal system in
the collective bargaining agreement. As a result, the
agency in that case would have been bound by the terms of
those portions of the performance appraisal system, and
would have been precluded from changing those portions of
the system, for the life of the contract, notwithstanding
the fact that they constituted the exercise of management's
right to direct employees and assign work under section
7106(a)(2)(A) and (B) of the Statute.

In the instant case, on the other hand, consistent
with the parties' Memorandum of Agreement, the provision
does not bind the Agency for the life of the contract.
Rather, the Agency may change the terms of the provision at
any time, as long as it notifies the Union and fulfills its
obligation to bargain over the impact and implementation of
the change. We find, therefore, that Provision 2 is
negotiable.

III. Provision 3

Section 17

A. Employees shall be provided with written
notification when requested to appear for any
sort of drug testing. Such written notice shall
be given to the employee in advance of the
designated test time. The notice shall contain
the following information:

a. A description of the drug(s) or class of
drug(s) for which they are to be tested.

b. If testing is requested as the result of
"reasonable suspicion," a description of the
basis of suspicion.

c. The consequences of refusing to
appear for testing.

d. If the testing facility allows attendance,
the Union representative may attend the testing.

B. Employees receiving notices to report for
drug testing shall receive a second copy of the
notice with the following typed at the top:
"This copy may, at your option, be furnished to
your union representative."

[Only the underscored portion is in dispute.]

A. Positions of the Parties

1. Agency

The Agency contends that Section d of Provision 3 is
inconsistent with section 2.2(d) of the final Guidelines,
which are Government-wide regulations within the meaning of
section 7117(a)(1) of the Statute. The Agency states that
section 2.2(d) provides that no unauthorized personnel are
to be permitted in any part of the designated collection
site. The Agency claims that Section d of Provision 3 is
inconsistent with the final Guidelines because it would
permit a Union representative "to be in attendance during
the collection of a specimen for testing if the testing
facility (which is run by a contractor) allows attendance."
Statement of Position at 4.

The Agency also asserts that Section d of Provision 3
interferes with management's right to determine its
internal security practices under section 7106(a)(1) of the
Statute. The Agency states that "an agency's drug testing
program is part of its internal security procedures" and
that "[a]n integral aspect of establishing a drug testing
program is management's decision as to the methods it will
use to determine whether employees have used illegal
drugs." Id. at 5 (citingNational Treasury Employees Union
and U.S. Customs Service, 31 FLRA 118, 121 (1989)). The
Agency concludes that the "determination of who will be
present at the collection site during the collection
process" constitutes a determination as to the methods to
be used in drug testing. Id.

The Agency notes that, under the final Guidelines,
"the collection site person serves in the role of monitor
during the collection process." Id. The Agency claims
that if the testing facility allows a Union representative
to accompany an employee, the Agency would not be able to
prohibit the Union representative from attending.
According to the Agency, the presence of a Union
representative would require the collection site person to
monitor both the giving of the sample and the Union
representative and would "complicate and compromise the
security of all specimens collected at the site[.]" Id. at
6. The Agency concludes that Section d of Provision 3
directly interferes with management's right to determine
its internal security practices, including the right to
determine who will have access to the collection site
during the collection of specimens, because it would allow
the Union representative to be present.

2. Union

The Union states that the disputed language in
Provision 3 allows a Union representative to be present at
the collection site when an employee is undergoing urine
testing. The Union states that the provision "grants the
testing facility the right to allow (or 'authorize')
attendance of the [U]nion representative. Webster's New
World Dictionary, defines 'authorize' as . . . 'to give
official approval to or permission for.'" Response at 4
(quotingWebster's New World Dictionary). The Union
concludes that the Agency violates fundamental principles
of contract interpretation by arguing that the plain
language of the provision conflicts with the final
Guidelines, when the provision is actually consistent with
the Guidelines.

The Union disagrees with the Agency's contention that
Section d of Provision 3 interferes with management's right
to determine its internal security practices under section
7106(a)(1) of the Statute. The Union acknowledges that the
Agency's drug testing plan is part of its internal security
procedures. However, the Union challenges "the assertion
that the Agency is precluded from bargaining over the
presence of the legal exclusive representative of an
employee subject to drug testing, which is a type of formal
investigation." Id. at 4.

The Union states that Section d of Provision 3 does
not call for the Union representative's presence while
employees are giving their urine samples. Rather, the
provision merely allows attendance at the site. The Union
maintains that once the testing facility authorizes Union
attendance, the Agency's right to determine its internal
security practices cannot supersede the Union's statutory
right and obligation to represent an employee at any
examination by a representative of the Agency (or at a
contracted collection site) if the employee believes the
examination may result in discipline and the employee
requests representation. Id. at 5.

The Union claims that, assuming that the decision as
to who may attend the collection site is a matter related
to the Agency's internal security practices, the Authority
must assess whether Section d of Provision 3 excessively
interferes with a management right under section 7106(a) of
the Statute so as not to constitute an appropriate
arrangement under section 7106(b)(3). The Union asserts
that Section d of Provision 3 allows it to perform its
statutory obligation to represent employees undergoing drug
testing and that the provision is clearly an appropriate
arrangement because it does not excessively interfere with
the Agency's right to determine how to conduct the tests.

The Union contends that the impact on employees of
being required to undergo a random drug test "is as extreme
and severe as any action taken in the work site" because
such a test is "an extreme invasion of personal privacy,"
involves an analysis of employees' bodily fluids, may
result in employees' feeling "great fear and shame," and
could result in discipline or discharge. Id. at 6. The
Union also notes that whether employees are tested is
outside the employees' control. The Union also argues that
the impact of the provision on management is minimal
because only collection site personnel would be affected
and they would already have authorized the Union
representative's presence. Consequently, the Union
concludes, the "minimal intrusion" on management's rights
is outweighed by the benefit to employees of having the
representative present. Id. at 7.

B. Analysis and Conclusions

Section d of Provision 3 would allow a Union
representative to be present at the collection site when
employees are undergoing urine testing, provided the
collection facility allows the Union representative's
presence. We find that Section d of Provision 3 is
negotiable.

Proposals that permit a union representative to be
present at the collection site when a sample is being
collected from an employee are consistent with section
2.2(d) of the final Guidelines and do not directly
interfere with management's right to determine its internal
security practices under section 7106(a)(1) of the Statute.
SeeNational Federation of Federal Employees, Forest
Service Council and U.S. Department of Agriculture, Forest
Service, Washington, D.C., 40 FLRA 174, 180 (1991),
petition for review filed sub nom.U.S. Department of
Agriculture, Forest Service v. FLRA, No. 91-1275 (D.C. Cir.
June 10, 1991) (Forest Service). Because Provision 3
provides only for a Union representative to be present at
the collection site while an employee is providing a urine
sample for testing, we find, consistent with Forest
Service, that Provision 3 is consistent with section 2.2(d)
of the final Guidelines and does not directly interfere
with management's right to determine its internal security
practices under section 7106(a)(1). Consequently, we
conclude that Provision 3 is negotiable as a procedure
under section 7106(b)(2) of the Statute. Accordingly, we
need not address the Union's appropriate arrangement
argument.

IV. Provision 4

Section 21

Personnel involved in the collection/testing
process shall be qualified to perform the
assigned tasks.

A. Positions of the Parties

1. Agency

The Agency states that, based on the Union's
explanation of the meaning of Provision 4, personnel
involved in the collection/testing process must be
medically and/or legally qualified to perform those
functions. In addition, the Agency notes that section 3.3
of the final Guidelines establishes the criteria that
laboratories must meet to qualify for certification and
that the Authority has found that the final Guidelines are
Government-wide regulations within the meaning of section
7117(a)(1) of the Statute.

The Agency states that a similar proposal precluding
testing from being performed by unqualified personnel was
determined to be nonnegotiable by the U.S. Court of Appeals
for the District of Columbia Circuit in Department of the
Army, U.S. Army Aberdeen Proving Ground Installation
Support Activity v. FLRA, 890 F.2d 467 (D.C. Cir. 1989)
(Aberdeen Proving Ground). According to the Agency, the
court found that the final Guidelines provide the exclusive
standard for qualifying or certifying test personnel and
concluded that the proposal was inconsistent with the final
Guidelines because it required laboratories to meet
additional standards beyond those established by the
Guidelines. Consequently, the Agency argues that Provision
4 is nonnegotiable.

2. Union

The Union acknowledges that in Aberdeen Proving
Ground the court held a similar proposal to be
nonnegotiable because the proposal went beyond the
requirement of the final Guidelines "that laboratories and
not personnel be certified." Response at 8. However, the
Union "begs to differ with the D.C. Circuit's finding."
Id. The Union asserts that "[c]onflict with
[G]overnment-wide law or regulation requires that a
proposal directly contradict the law." Id. at 8-9. The
Union contends that Provision 4 does not directly
contradict the final Guidelines.

Rather, according to the Union, the provision affords
the Agency discretion over which the Agency is obligated to
bargain. The Union contends that "[t]o the extent that the
guidelines are silent on the qualifications of laboratory
personnel and to the extent that unqualified personnel can
generate false test results, thereby failing the [A]gency's
attempts to ensure its internal security, declaring this
proposal nonnegotiable contravenes general negotiability
principles, common sense, the agency's mission, the
efficiency and effectiveness of the government, and public
policy." Id. at 9. The Union "urges" the Authority to
"contest" the court's decision in Aberdeen Proving Ground.
Id. at 9.

B. Analysis and Conclusions

We find that Provision 4 is inconsistent with the
final Guidelines and conclude, therefore, that the
provision is nonnegotiable under section 7117(a)(1) of the
Statute.

In Aberdeen Proving Ground, the court found that the
final Guidelines were intended to establish the exclusive
standards for the certification of laboratories that
performed drug tests under the Executive Order drug testing
program. According to the court, "[a] laboratory's
certification under the Guidelines 'shall be a
determination that these qualification requirements have
been met.'" Id. at 473 (quoting section 3.6 of the final
Guidelines, 53 Fed. Reg. at 11987). The court also found
that the final Guidelines do not specify requirements for
the personnel who perform the test, "but rather depend on
the ability of those responsible individuals [engaged in
the day-to-day management and operation of laboratories] to
select and oversee properly qualified employees in each
specific laboratory[.]" Id. (quoting 53 Fed. Reg. at
11971).

Because the final Guidelines do not specify
requirements for laboratory personnel who perform drug
tests, the court found that the imposition of additional
standards for those laboratory personnel was inconsistent
with the final Guidelines. Id. Specifically, the court
found that a proposal prescribing the qualifications of the
personnel who will operate drug testing equipment "is
inconsistent with the spirit, if not the letter, of the
[final] Guidelines" and concluded that the proposal was
nonnegotiable. Id. at 474.

On remand from the court in Aberdeen Proving Ground,
the Authority decided, in Rock Island III(4), 35 FLRA 936,
938-39 (1990), that the proposal "regarding the
qualifications of personnel operating [drug] testing
equipment" was nonnegotiable because it was inconsistent
with the final Guidelines. The Authority stated that "[i]n
future cases involving proposals that are not materially
different from Proposal 3 [in Rock Island III] . . . and
that are intended to be applied in the same manner, we will
also find them to be nonnegotiable." Id.

The Union has provided no persuasive reasons for us
to reconsider the Authority's decision in Rock Island III.
Consequently, we reject the Union's request that we decline
to follow Aberdeen Proving Ground.

By its terms, and as explained by the Union,
Provision 4 would prescribe the qualifications of the
personnel who will operate drug testing equipment. That
is, the provision would determine the qualifications of the staff of the independent, certified laboratory performing
urinalysis under the final Guidelines. The specific
qualifications for laboratory personnel who operate drug
testing equipment prescribed by Provision 4 are in addition
to the standards established by the final Guidelines for
laboratory certification. We find, therefore, that
Provision 4 is not materially different from Proposal 3 in
Rock Island III and that it is intended to be applied in
the same manner. Because we find that Provision 4
establishes specific qualifications for laboratory
personnel in addition to the standards prescribed by the
final Guidelines for laboratory certification, we conclude,
consistent with Rock Island III, that the provision is
inconsistent with the final Guidelines and, therefore,
nonnegotiable under section 7117(a)(1) of the Statute.

V. Provision 5

Section 23

Upon receiving notification of a positive test
result, the employee may have another test
conducted on a different portion of the original
sample by another HHS certified laboratory. ATF
[Bureau of Alcohol, Tobacco and Firearms] will
pay for the retest.

A. Positions of the Parties

1. Agency

The Agency contends that Provision 5 allows the
employee, upon notification of a positive drug test, to
require the Agency to have a second test performed on a
different portion of the original sample by another
certified laboratory and that the provision requires the
Agency to pay for the retest. The Agency notes that, under
the final Guidelines, the only person authorized to order a
reanalysis of the original sample is the Medical Review
Officer (MRO) and that a retest may be ordered only if
there is a question as to the accuracy or validity of the
result or if the MRO determines that the test result is
scientifically insufficient.

The Agency contends that only the MRO can order a
retest of the original sample and that only the MRO is
authorized to determine the accuracy or validity of the
drug test results, relying on the court's discussion of the
role of the MRO in Aberdeen Proving Ground. According to
the Agency, "the MRO makes all final determinations whether
a particular sample demonstrates an employee's illegal
drug use. While the MRO is not involved in personnel
decisions, his or her medical evaluation of positive test
results . . . is conclusive." Statement of Position at 7
(quotingAberdeen Proving Ground at 472). The Agency
argues that because the provision "would undermine the
MRO's authority to make a determination whether a
particular sample serves to demonstrate an employee's
illegal drug use, it is clearly inconsistent with" the
final Guidelines. Id. Consequently, the Agency concludes
that Provision 5 is nonnegotiable under section 7117(a)(1)
of the Statute.

2. Union

The Union explains that Provision 5 allows an
employee whose urine sample tested positive for drugs to
have a second test done on a reserved portion of the
original urine sample and that the second test must be done
by a certified laboratory at the Agency's expense.

The Union notes that the Agency disapproved Provision
5 based on Aberdeen Proving Ground. The Union indicates
that it challenges the court's decision in Aberdeen
Proving Ground and "urges the Authority to challenge it as
well." Response at 9. The Union argues that, contrary to
the reasoning in Aberdeen Proving Ground, Provision 5
"would not undermine the role of the [MRO] in determining
whether a given sample demonstrates an employee's illegal
drug use." Id. The Union asserts that Provision 5 "merely
requires a second testing of the sample which expands the
evidence available to the [A]gency and to the MRO." Id. at
9-10.

The Union acknowledges that, under section 2.7(e) of
the final Guidelines, only the MRO can order a retest of
the original sample. However, the Union argues that the
final Guidelines "can not preclude the retesting by
employees in defense of their own due process rights." Id.
at 10. According to the Union, section 2.7(e) could not have been
intended to prevent "an employee from generating whatever
evidence he or she can in [his or] her own defense." Id.
The Union contends that the result of such an
interpretation of the final Guidelines is unconstitutional.
Consequently, the Union urges the Authority to contest the
Aberdeen Proving Ground decision on these grounds.

B. Analysis and Conclusions

Provision 5 would require the Agency, at the request
of an employee who has tested positive on a drug test, to
order a retest of another portion of the original sample by
a different certified laboratory at Agency expense. We
find that Provision 5 is inconsistent with section 2.7(e)
of the final Guidelines, which are Government-wide
regulations and, therefore, Provision 5 is nonnegotiable
under section 7117 of the Statute.

In our decision on remand, Aberdeen III, 35 FLRA 926,
928 (1990), we stated that in future cases involving
proposals that are not materially different from the
proposal in Aberdeen III, and that are intended to be
applied in the same manner, we will also find them to be
nonnegotiable. In Aberdeen III, the results of a split
sample test would be given to the employee's supervisor to
refute the positive results received from the official drug
test. The court found that such a proposal undermined the
authority of the MRO, because only the MRO is capable of
evaluating medical data from the drug tests. However, as
to Provision 5, the Union has stated that its purpose is to
provide the results of the retest on the original sample to
the MRO. Provision 5 is silent as to the use of the
results of the retest. Therefore, we will adopt the
Union's interpretation for the purposes of this decision.
Accordingly, construed in this manner, Provision 5 would
not enable employees to challenge the MRO's judgment as to
the results of the test, and is distinguishable from
Aberdeen III.

The issue then becomes whether Provision 5 is
otherwise consistent with the final Guidelines or whether
grounds exist to find the provision, as interpreted by the
Union, nonnegotiable under section 7117(a)(1). The final
Guidelines are Government-wide regulations within the
meaning of section 7117(a)(1) of the Statute. Aberdeen
Proving Ground, 890 F.2d at 469-70; Rock Island II, 33 FLRA
at 438-39. The final Guidelines state that "[s]hould any
question arise as to the accuracy or validity of a positive
test result, only the [MRO] is authorized to order a
reanalysis of the original sample and such retests are
authorized only at laboratories certified under these
Guidelines." See section 2.7(e) of the final Guidelines,
53 Fed. Reg. 11986. Because Provision 5 conditions a
retest of a portion of the original sample on the request
of the employee, rather than on the determination of the
MRO that such a reanalysis is necessary, the provision is
inconsistent with section 2.7(e) of the final Guidelines.

More specifically, the final Guidelines specify that
the MRO may order a reanalysis of the original sample when
a question arises as to the accuracy or validity of a
positive test result. See section 2.7(e) of the final
Guidelines. Provision 5 allows the employee to have
another test conducted on a different portion of the
original sample whenever a positive test result occurs. In
other words, the provision requires a retest of the
original sample without regard to whether the MRO has
determined that there is a question as to the accuracy or
validity of the positive confirmatory test. Because
Provision 5 would require a reanalysis of the original
sample regardless of the grounds for such a retest under
the final Guidelines, Provision 5 is inconsistent with
section 2.7(e) of the final Guidelines.

We note that this provision is distinguishable from a
similar proposal in National Federation of Federal
Employees, Local 1384 and U.S. Department of the Air Force, 3245th Air
Base Group, Hanscom Air Force Base, Massachusetts, 41 FLRA
195 (1991) (Hanscom AFB). In that case, the proposal
provided for placing the amount of the urine sample in
excess of 60 ml. in a separate container, which would be
tested if the original sample was tested positive during
confirmatory testing. In our decision in Hanscom AFB, we
specifically noted that the proposal involved "testing of
the split sample, not reanalysis of the original sample."
Id. at 199. Because the proposal in Hanscom AFB did not
involve retesting of the original sample, we found that it
did not conflict with the responsibility of the MRO under
section 2.7(e) of the final Guidelines to determine the
accuracy or validity of a positive confirmatory test on the
original sample. Provision 5, on the other hand, concerns
retests of the original or official sample within the
meaning of section 2.7(e).

Moreover, the nonnegotiability of Provision 5 is not
affected by the fact that, under the final Guidelines, a
retest of the original sample is conditioned on a
determination by the MRO that a question exists as to the
accuracy or validity of a positive confirmatory test
result. Where a Government-wide regulation provides for a
determination to be made by a particular official as a
condition precedent to further action, a proposal that
preempts the determination to be made by that official is
inconsistent with the regulation. SeeAssociation of
Civilian Technicians and U.S. Department of Defense,
National Guard Bureau, Rhode Island National Guard,
Providence, Rhode Island, 38 FLRA 1005, 1008-09 (1990),
motion for reconsideration denied, 39 FLRA 381 (1991),
petition for review filed as to other matters sub nom.U.S.
Department of Defense, National Guard Bureau, Rhode Island
National Guard, Providence, Rhode Island v. FLRA, No.
91-1090 (D.C. Cir. Feb. 19, 1991) (Rhode Island National Guard) (proposal which prescribed monetary awards to be
paid to employees who attain specified levels of
performance is nonnegotiable under section 7117(a)(1) of
the Statute); National Association of Government Employees,
Local R1-144, Federal Union of Scientists and Engineers and
U.S. Department of the Navy, Naval Underwater Systems
Center, Newport, Rhode Island, 38 FLRA 456, 492-93 (1990),
petition for review filed sub nom.United States Department
of the Navy, Naval Underwater Systems Center, Newport,
Rhode Island v. FLRA, No. 91-1045 (D.C. Cir. Jan. 24,
1991). Because Provision 5 preempts the MRO's
determination as to the accuracy or validity of a
confirmatory test, we find, consistent with Rhode Island
National Guard, that the provision is inconsistent with the
final Guidelines. SeealsoInternal Revenue Service, Los
Angeles District v. FLRA, 902 F.2d 998, 1001 (1990).

Accordingly, we find that Provision 5 is inconsistent
with the final Guidelines, which are Government-wide
regulations. Because Provision 5 is inconsistent with a
Government-wide regulation, it is nonnegotiable under
section 7117(a)(1) of the Statute.

We note that the Union urges us to find a portion of
the final Guidelines to be unconstitutional. However,
whether the final Guidelines are unconstitutional is
irrelevant to a negotiability determination by the
Authority because we have no authority to adjudicate the
validity of a Government-wide regulation promulgated by
another Federal administrative agency. American Federation
of Government Employees v. FLRA, 794 F.2d 1013 (5th Cir.
1986). If the validity of a portion of the final
Guidelines is in question, the challenge should be made by
an interested party in another forum, such as a Federal
district court. See, for example, National Treasury
Employees Union v. Devine, 577 F. Supp. 738 (D.D.C. 1983),
aff'd, 733 F.2d 114 (D.C. Cir. 1984) (union challenged
Office of Personnel Management regulations in district
court).

VI. Provision 6

Section 14

Employees who voluntarily attend and/or visit
the EAP [Employee Assistance Program] for
counseling and/or treatment; or who are referred
to the EAP for counseling and/or treatment shall
be granted administrative leave for
participation in such counseling and/or
treatment sessions. Scheduling of such leave
will be approved absent severe workload
disruption.

A. Positions of the Parties

1. Agency

The Agency contends that Provision 6 requires it to
grant administrative leave to employees to attend EAP
treatment or counseling unless their absence would create a
severe disruption in work. The Agency maintains that the
provision interferes with management's right to assign work
under section 7106(a)(2)(B) of the Statute, because it
would prevent management from assigning work to employees
during the time they were in counseling or treatment. The
Agency argues that Provision 6 would prevent management
from assigning work in situations other than those for
which a severe workload disruption would occur.

The Agency also asserts that Provision 6 conflicts
with a Government-wide regulation. According to the
Agency, Federal Personnel Manual Supplement 990-2, chapter
630, subchapter 11-5, attachment 2, indicates the usual
absences for which administrative leave may be granted.
While the Agency admits that the listing is not exhaustive,
the Agency argues that "'a grant of administrative leave
for an extended period of time is not appropriate unless it
is in furtherance of an agency function.'" Statement of
Position at 3 (citing 61 Comp. Gen. 652 (1982) as quotedinAmerican Federation of Government Employees, AFL-CIO, Local
3804 and Federal Deposit Insurance Corporation, Madison
Region, 21 FLRA 870, 896 (1986) (FDIC Madison)). The
Agency argues that counseling and/or treatment may last 30
days or longer which would be far longer than the amount of
leave in the proposal at issue in FDIC Madison which the
Authority found to be nonnegotiable. The Agency also
questions whether the grant of such an amount of
administrative leave for counseling and/or treatment would
be "in furtherance of an agency function." Id.

The Agency contends that sick leave and/or annual
leave may be used for the time an employee may spend
receiving counseling and/or treatment. According to the
Agency, the purpose of annual and sick leave is to provide
employees time off for personal and emergency purposes.
The Agency asserts that because it is the employee's
personal need which creates the request for time to seek
counseling and/or treatment, the employee should use earned
leave to cover that time.

2. Union

The Union states that Provision 6 means that
employees will be granted administrative leave during work
hours to attend Employee Assistance Program treatment or
counseling. According to the Union, the employees must ask
their supervisor for approval before attending the session,
and the supervisor must grant the time unless the loss of
the employees would create a severe disruption in the work.

The Union contends that employees have a statutory
right to accumulate and take leave. The Union argues that
if management's rights are expanded to the level where they
can deny leave for any work-related reason, an employee's
right to leave can be "obliterated." Union's Response at
3. The Union asserts that leave requests for counseling or
treatment should be approved, because an employee who has
tested positive for drugs is obligated to attend
counselling or treatment, or else face discipline or
discharge. The Union contends that the regulatory
requirements for an agency to offer and for an employee to
undergo rehabilitation must be adhered to and override
management's right to assign work.

The Union asserts that requiring management to
approve an employee's request to take administrative leave
for counseling or treatment as scheduled by the employee,
absent a severe workload disruption, balances management's
right to assign work with the employees' right to
rehabilitation and the management duty to rehabilitate
employees. In the alternative, the Union argues that
Provision 6 constitutes an appropriate arrangement for
employees who need counseling or treatment who are
adversely affected by management's right to assign work.
The Union maintains that the impact of refusing the leave
to employees is significant because an employee can be
fired for not participating in rehabilitation and an agency
can lose its appropriations for failing to comply with an
Executive Order. The Union points out that employees have
no control over management's decision to refuse leave for
counseling or treatment purposes. The Union contends that
the impact on management's right to assign work is minimal,
because management can still ask employees to delay a
counselling session occasionally if work cannot be
accomplished without the employee. According to the Union,
the balance falls in favor of releasing employees for
counseling or treatment.

The Union disagrees with the Agency's conclusion that
the standard for granting administrative leave renders the
provision nonnegotiable. The Union claims that the
regulation and case law give discretion to agencies to
determine when to grant administrative leave. According to
the Union, as in any context where an agency has
discretion, it can negotiate over how it will exercise its
authority. The Union states that 5 U.S.C. § 6326 gives
agencies the right to grant administrative leave excusing
an employee from work when it is in the public interest.
The Union cites to several Authority decisions, including
National Treasury Employees Union and Nuclear Regulatory
Commission, 31 FLRA 566, 609 (1988) (Nuclear Regulatory
Commission). The Union asserts that in Nuclear Regulatory
Commission, the Authority found negotiable a provision
allowing up to 90 days' leave in conjunction with an
employee relocating following a reduction in force.

The Union argues that once it has been established
that the Agency can grant administrative leave, and that
the scope of its discretion is subject to negotiation, the
Agency's concern regarding the length of leave required by
this provision is unfounded. The Union contends that an
agency's duty to provide rehabilitation for its employees
who use drugs "earmarks" this use of leave as one which is
"in the pubic interest" and which is "in furtherance of an
agency function." Response at 6. The Union states that if
the amount of leave reaches a point where a conflict with
law or regulation arises, the Agency can cease providing
the leave and require the employee to switch to available
annual or sick leave. The Union maintains that "[t]he
Authority case law upholding a ninety day grant or more of
administrative leave as an adverse impact proposal appears
to preclude the agency from ever [reaching] this point, but
NTEU acknowledges that day could come." Id. at 7.

Finally, the Union replies to the Agency's argument
that employees needing counseling or rehabilitation may use
available annual or sick leave. The Union states that
"regulatory permission to use sick and annual leave for a
given purpose does not and cannot negate agency discretion
to grant administrative leave for that same purpose." Id.
The Union argues that because rehabilitation is both
legally required and personally desired, it cannot be
considered only as an employee's personal need. The Union
argues, therefore, that Provision 6 is negotiable.

B. Analysis and Conclusions

Provision 6 provides that employees participating in
the Employee Assistance Program shall be granted
administrative leave for the time spent in counseling or
treatment. The provision also provides that management
will approve the scheduling of such leave unless the
employee's absence would cause severe workload disruption.
We conclude that Provision 6 is not inconsistent with
applicable Government-wide regulations and that it does not
excessively interfere with the Agency's right to assign
work under section 7106(a)(2)(B) of the Statute.
Accordingly, we find that Provision 6 is negotiable.

1. Provision 6 Is Consistent with Applicable Regulations

The Authority has consistently construed those
portions of the Federal Personnel Manual (FPM) concerning
administrative leave (chapter 630, subchap. 11-5, and FPM
Supplement 990-2, chap. 630, subchap. S11-5) as providing
that the head of an agency has discretion to grant
administrative leave to employees of the agency in certain
situations for brief periods of time. Where management has
discretion, it can negotiate over how it will exercise that
discretion. SeeNational Federation of Federal Employees
and U.S. Department of the Interior, U.S. Geological
Survey, Eastern Mapping Agency, 21 FLRA 1105, 1114 (1986)
(the Authority found negotiable a provision that provided
administrative leave or excused absence for short periods
of agency closure due to circumstances beyond the agency's
control, such as snow storms, floods, lack of utilities).

In this case, the Agency has argued that both the
purpose and duration of the grant of administrative leave
is impermissible. The Agency has not demonstrated to us,
and it is not otherwise apparent, that granting
administrative leave to an employee for the purpose of
counseling or treatment is inconsistent with law or
Government-wide regulation. As for the duration of the
grant of administrative leave, the Union stated that "[i]f
the amount of leave reaches a point where a conflict with
law or regulation arises, [the Agency] can cease provision
of the leave and require the employee to switch to annual
and/or sick leave usage." Union's Response at 6-7.(5)
Because the Union's explanation of Provision 6 is consistent with the
wording of the provision, we shall adopt this
interpretation for purposes of this decision. We find
that, interpreted in this manner, Provision 6 is consistent
with applicable regulatory limitations on the Agency's
discretion to grant administrative leave.

2. Provision 6 Directly Interferes with Management's Right to Assign Work under
Section 7106(a)(2)(B)

The plain wording of Provision 6 requires the Agency,
at the request of the employee, to grant administrative
leave for purposes of counseling or treatment for drug use.
Under the provision, scheduling of such administrative
leave will be approved unless it would result in a severe
workload disruption.

Because Provision 6 requires management to approve
leave for employees, absent severe workload disruption, we
find, consistent with Fort Campbell, that the provision
directly interferes with management's right to assign work
under section 7106(a)(2)(B) of the Statute. SeeNational
Federation of Federal Employees, Local 2050 and
Environmental Protection Agency, 36 FLRA 618, 631-32
(1990).

3. Provision 6 Is an Appropriate Arrangement Within the Meaning of Section 7106(b)(3) of
the Statute

The Union argues that Provision 6 is intended to be
an appropriate arrangement under section 7106(b)(3) of the
Statute. The Union asserts that the provision is intended
to mitigate the adverse effects of management's exercise of
its right to deny leave to employees who are undergoing
drug counseling and treatment. For the following reasons,
we conclude that this provision constitutes a negotiable
appropriate arrangement under the standards set forth in
National Association of Government Employees, Local R14-87
and Kansas Army National Guard, 21 FLRA 24, 31-33 (1986)
(Kansas Army National Guard).

Initially, we find that Provision 6 is an arrangement
for adversely affected employees under section 7106(b)(3)
of the Statute. The Union asserts that the provision is
intended to mitigate the adverse effects on employees of
the exercise of management's right to deny leave, so as to
preclude an employee from attending counseling or treatment
for drug use. We note that it is reasonably foreseeable
that bargaining unit employees would be adversely affected
by the exercise of management's right to deny
administrative leave to employees needing to attend
counseling or treatment for drug use. Indeed, under
sections 5(a) and (b) of Executive Order No. 12564,
attendance at the counseling and successful completion of
treatment is required for employees who have been found to
use illegal drugs, whether by voluntary admission or
through testing, in order for those employees to continue
their Federal employment.

In order to determine whether Provision 6 is an
appropriate arrangement, within the meaning of section
7106(b)(3), we must examine whether the negative impact on
management's right to assign work is disproportionate to
the benefits the arrangements confer on employees. SeeKansas Army National Guard, 21 FLRA at 33. That is, we
must decide whether Provision 6 excessively interferes with
the right to assign work.

Provision 6 requires the Agency to approve
administrative leave for employees attending counseling and
treatment for drug abuse, absent severe workload
disruption. By requiring management to approve
administrative leave, the provision precludes management
from assigning the work to that employee that the employee
would have performed had the employee remained on duty.

The question, therefore, is whether the burden
imposed on management by the absence of the employee on
administrative leave is disproportionate to the benefit the
employee receives from the rehabilitation and counseling.
We note, in this connection, that the Agency is required by
section 5(a) and (b) of Executive Order No. 12564 to
provide rehabilitation to employees who are found to use
illegal drugs. Under section 5(d)(1) of the Executive
Order, employees who are found to use illegal drugs must
participate in counseling and rehabilitation treatment in
order to retain employment with the Agency. That is, as a
condition of continued employment with the Agency,
employees found to use illegal drugs must attend the
counseling and treatment for which the administrative leave
is sought. In our view, the use of some worktime to enable
employees to obtain rehabilitation benefits the Agency by
assisting in the return of a rehabilitated employee to the
work force and would be consistent with the drug abuse
policy applicable to Federal employees.

We also note that the provision does not constitute
an absolute requirement that any request for administrative
leave be approved regardless of the timing or duration.
Under the provision, the Agency retains some control over
the scheduling of the leave. While not every potential
disruption of Agency work would be a basis for denying
leave, management would retain the ability to deny leave if
an employee's absence would severely affect the workload.
In our opinion, the benefit to employees from
rehabilitation is sufficient to overcome the restriction on
management's ability to deny leave.

On balance, therefore, we find that any negative
effect of Provision 6 on Agency operations is outweighed by
the benefit employees receive from the grant of
administrative leave to attend counseling and treatment
sessions for drug use. Consequently, we conclude that
Provision 6 constitutes a negotiable appropriate
arrangement within the meaning of section 7106(b)(3) of the
Statute. SeeNational Treasury Employees Union and U.S.
Department of the Treasury, Office of Chief Counsel,
Internal Revenue Service, 39 FLRA 27, 46-50 (1991),
decision on reconsideration as to other matters, 40 FLRA
849 (1991), petition for review filed sub nom.U.S.
Department of the Treasury, Office of Chief Counsel,
Internal Revenue Service v. FLRA, No. 91-1139 (D.C. Cir.
March 25, 1991).

VII. Provision 7

Section 15

If a supervisor reasonably suspects an ATF
employee of using illegal drugs and orders such
employee to be tested based on reasonable
suspicion, the employee shall receive two copies
of the written basis for the test. One copy
shall have the following typed at the top:
"This copy may, at your option, be furnished to
your union representative." A copy of this
written report shall be provided to the employee
and to the local NTEU Chapter at the same time
that it is provided to the designated Agency
official.

[Only the underscored portion is in dispute.]

A. Positions of the Parties

1. Agency

The Agency contends that Provision 7 is nonnegotiable
because it conflicts with the Privacy Act, 5 U.S.C. § 552a,
which prohibits the disclosure of personal information from
a system of records without the employee's consent. The
Agency states that, consistent with section 3.c.(3) of FPM
Letter 792-19, entitled "Establishment of Drug-Free Federal
Workplace," the Agency's written documentation of the basis
for the reasonable suspicion test is retained in the
adverse action file compiled by the Agency. The Agency
also states that its files are a system of records under
the Privacy Act. The Agency cites its system of records
designated ATF .007, 53 Fed. Reg. 6279, March 1, 1988.

The Agency acknowledges that material may be
disclosed from a system of records if disclosure is made
pursuant to a "routine use." The Agency also acknowledges
that one of the routine uses for ATF System .007 "is
disclosure to 'unions recognized as exclusive bargaining
representatives[.]" Statement of Position at 5. The
Agency contends, however, that a routine use cannot be
interpreted so broadly as to permit the disclosure of drug
testing records to the Union, as required by Provision 7.
Specifically, the Agency argues that, under law and
regulation, a routine use is a use which is compatible
with, and related to, the purpose for which the information
was collected. The Agency claims that "the release of any
records to the Union relating to the drug testing of a
specific employee . . . without the employee's consent is
not a 'compatible' use of that record." Id. The Agency
concludes, therefore, that disclosure of the reasons for
requiring an employee to take a drug test, without the
employee's express consent, would violate the Privacy Act.

The Agency asserts that Congress had an overriding
interest in protecting the confidentiality of drug testing
records and preserving the privacy of Federal employees.
The Agency maintains that Congress accomplished this
purpose by enacting Section 503(e) of Public Law 100-71,
101 Stat. 471, July 11, 1987, which strictly controls and
limits the disclosure of drug testing records without the
employee's consent. The Agency concludes that "[i]t is
clear then that the release of any records to the Union
relating to the drug testing of a specific employee (as
opposed to records relating to the testing program as a
whole) without the employee's consent is not a 'compatible'
use of that record. Therefore, no routine use of a drug
testing record could authorize its disclosure to the Union
without the employee's consent." Statement of Position at
5. The Agency also argues that disclosure of these records
is not warranted under the Freedom of Information Act.

2. Union

The Union states that the portion of Provision 7 in
dispute would require management to give the Union a copy
of the document given to an employee explaining the reasons
for requiring a reasonable suspicion drug test.

The Union contends that the "reasonable suspicion"
documentation is disclosable to the Union under section
7114(b) of the Statute. The Union argues that under the
Privacy Act, a union may receive documents from an agency's
adverse action system of records. According to the Union,
the fact that employees would be able to provide a copy of
the documentation to a union does not abrogate a union's
right to receive this information directly from an agency.
The Union contends that release of such documents to a
union does not violate the Privacy Act.

The Union also argues that this documentation is
necessary for the Union to fulfill its representational
duties. The Union states that the documentation is
necessary for it to determine whether any employee is
receiving disparate treatment with regard to reasonable
suspicion drug testing. The Union maintains that the
grounds for disclosure under section 7114(b) are sufficient
to support the negotiability of Provision 7.

B. Analysis and Conclusions

The portion of Provision 7 which is in dispute
requires the Agency to provide the Union a copy of the
document given to an employee explaining the reasons for
requiring the employee to undergo drug testing based on the
Agency's reasonable suspicion that the employee uses drugs.
For the following reasons, we find that the disputed
portion of Provision 7 is negotiable.

The Agency disapproved the portion of Provision 7
which is in dispute on the basis that it violated the
Privacy Act. The Agency asserted that Congress intended to
protect the confidentiality of any records relating to the
drug testing of a specific employee, citing Section 503(e)
of Public Law 100-71, 101 Stat. 471. We find that the
Agency's reliance on Section 503(e) is inapposite.

Section 503(e) of Public Law 100-71, 101 Stat. 471
states: "The results of a drug test of a Federal employee
may not be disclosed without the prior written consent of
such employee[.]" The disputed portion of Provision 7 does
not involve the result of an employee's drug test. Rather,
that portion of Provision 7 concerns disclosure of the
grounds on which the Agency has ordered an employee to
undergo reasonable suspicion drug testing. The basis for
the Agency's order of reasonable suspicion drug testing is
an entirely different matter from the results of an
employee's drug test. Accordingly, the Agency's reliance
on this statute is misplaced.

We reject the Agency's contention that disclosure of
the documentation sought is not consistent with the Privacy
Act or is not disclosable as a routine use under Exemption
(b)(3) of the Privacy Act. As acknowledged by the Agency,
the documentation sought in Provision 7 is maintained in an
Agency system of records, one of the routine uses for which
is disclosure to unions recognized as exclusive bargaining
representatives. Because one of the routine uses for the
Agency's system of records containing that documentation is
release to a union, release of the record to the Union in
this case is required under Exemption (b)(3) of the Privacy
Act, and thus does not violate that Act. SeeU.S.
Department of the Navy, Portsmouth Naval Shipyard,
Portsmouth, New Hampshire, 37 FLRA 515 (1990), application
for enforcement filed sub nom.FLRA v. U.S. Department of
the Navy, Portsmouth Naval Shipyard, Portsmouth, New
Hampshire, No. 90-1949 (1st Cir. Oct. 1, 1990), petition
for review filed sub nom.U.S. Department of the Navy,
Portsmouth Naval Shipyard, Portsmouth, New Hampshire v.
FLRA, No. 90-2014 (1st Cir. Oct. 19, 1990).

We note, in this connection, that the Agency's
"compatibility" argument is inapposite. Because that
argument is based on the definition of routine use, it is
an argument that is relevant to the question of whether a
particular system of records--ATF System .007--should have
disclosure to unions as a routine use. It is not an
argument that is relevant to the issue of the disclosure of
particular records in that system where there is such a
routine use already established.

Consequently, we find that Provision 7 is consistent
with law and conclude, therefore, that the provision is
negotiable.

VIII. Provision 8

Section 21

Employees shall be provided with written
notification when requested to appear for any
sort of drug testing. Such written notice shall
be given to the employee in advance of the
designated test time. The notice shall contain
the following information:

. . . .

3. Notification that the employee is entitled
to union representation at all stages of the testing procedures.

[Only the underscored portion is in dispute.]

A. Positions of the Parties

1. Agency

The Agency contends that the disputed portion of
Provision 8 is inconsistent with section 2.2(d) of the
final Guidelines, which are Government-wide regulations.
Accordingly, the Agency argues that because the provision
is inconsistent with a Government-wide regulation, it is
nonnegotiable under section 7117(a)(1) of the Statute.

The Agency also argues that the provision interferes
with management's right to determine its internal security
practices under section 7106(a)(1) of the Statute.

2. Union

The Union states that the disputed portion of
Provision 8 requires that employees be notified that they
are entitled to union representation at all stages of the
testing procedures, including at the collection site. The
Union states that the Union representative would not
accompany employees while they produce their urine
specimens.

The Union contends that Provision 8 does not
authorize a representative to be present at the testing
location. Rather, the Union states, the provision only
gives the employee notice of a right to Union
representation. The Union also contends that Provision 8
does not interfere with management's right to determine its
internal security practices under section 7106(a)(1) of the
Statute. The Union asserts that Provision 8 constitutes an
appropriate arrangement for employees undergoing drug
testing.

B. Analysis and Conclusions

In our analysis and conclusion with respect to
Provision 3 above, we found that a proposal which allows a
Union representative to be present at the collection site
when employees are undergoing urine testing is negotiable.
The disputed portion of Provision 8 requires the Agency to
give employees who are to be tested for drugs a notice
informing them that they are entitled to Union
representation at all stages of the testing procedures. We
find that Provision 8 is negotiable.

Proposals that provide notice to employees of a right
to union representation or to be accompanied by a union
representative during collection site procedures are
negotiable because such proposals are consistent with the
final Guidelines and do not directly interfere with
management's right to determine its internal security
practices. SeeForest Service, 40 FLRA at 180.
Accordingly, Provision 8 does not conflict with the final
Guidelines and does not interfere with the Agency's right
to determine its internal security practices under section
7106(a)(1) of the Statute.

Proposals that require that notice be given to
employees prior to a drug test but which do not specify how
much notice is required, are also negotiable. SeeDept. of
Education, 38 FLRA at 1084 (subsection G of Proposal 4,
which required management to inform employees that they
have a right to union representation at any point in the
drug testing process, would be negotiable). See our
analysis and conclusions regarding Provision 3, above. We
note, in this regard, that an exact amount of advance
notice is not specified in Provision 8. Moreover, the
Agency does not claim that the portion of Provision 8 that
requires that the notice to employees of their right to
Union representation during drug testing procedures be
given to the employees in writing in advance is
nonnegotiable.

Accordingly, consistent with Forest Service and our
resolution of Provision 3, above, we find that the disputed
portion of Provision 8 is negotiable.

IX. Provision 9

Section 24

If an employee is unable to provide a sufficient
volume of urine within a reasonable time on the
appointed day, he/she may return on the next day
until the necessary amount is voided.

A. Positions of the Parties

1. Agency

The Agency contends that Provision 9 is nonnegotiable
because, by extending the time allowed for a drug test, it
directly interferes with the Agency's right to determine
its internal security practices under section 7106(a)(1) of
the Statute.

The Agency argues that the practical effects of
Provision 9 would defeat the effectiveness of the test.
According to the Agency, studies show that the "urine
assay" methods generally available can detect light or
occasional use of certain drugs for 1-3 days. Agency's
Statement of Position at 9. The Agency argues, therefore,
that if samples could have been collected 1 day apart they
might have shown positive on the first sample and negative
on the second sample. Put another way, the Agency claims
"a person could have sufficient levels of an illegal drug
in his/her system to test positive for that drug on one day
and by the next day, the levels of the drug may be so
reduced that the person would test negative." Id.

The Agency contends that the provision could delay an
employee's test for 24 to 72 hours, if, for example, the
original drug test was scheduled on a Friday before a long
weekend. The Agency argues that the delay in collecting a
specimen, as provided in Provision 9, could result in
certain drugs not being detected by the test.

The Agency also argues that the delay in collecting a
sample could provide employees who use drugs time to take
measures to avoid detection, or to take steps to dilute the
illegal drugs in their systems. The Agency concludes that
Provision 9 would prevent the Agency "from relying on drug
tests as a means of determining its internal security
practices, in violation of [section] 7106(a)(1)." Id. at
10.

2. Union

The Union states that Provision 9 "allows an employee
to return within 24 hours of the original test if [he or]
she cannot produce sufficient urine within a reasonable
time on the first day." Union's Petition for Review at 3.

The Union asserts that Provision 9 should be found to
be negotiable for three reasons. The Union argues, first,
that the provision allows the Agency the ability to define
what is a "reasonable time" to provide a urine sample. The
Union also argues that an agency could determine that the
entire day is a "reasonable time" for employees being
tested on a Friday. The Union states that it was not its
"intent to extend this option beyond a twenty[-]four hour
period." Union's Response at 15.

Next, the Union contends that allowing employees to
return on a subsequent day would not allow those employees
to dilute the traces of any illegal drugs in their systems.
The Union points to the final Guidelines, which require
collection personnel to give employees having difficulty
providing a sufficient sample a glass of water to help
generate a specimen.

Finally, the Union argues that the Authority found a
similar proposal to be negotiable in National Treasury
Employees Union and U.S. Customs Service, 31 FLRA 118,
123-25 (1988) (Customs Service).

B. Analysis and Conclusions

Provision 9 allows an employee who is being tested
for illegal drug use and who cannot provide a sample of
sufficient volume to return the next day for testing. We
find that the provision is inconsistent with the final
Guidelines. Because Provision 9 is inconsistent with the
final Guidelines, which are Government-wide regulations,
Provision 9 is nonnegotiable under section 7117(a)(1) of
the Statute.

Provision 9 is substantively the same as Provision 4
in American Federation of Government Employees, Local 1808
and U.S. Department of the Army, Sierra Army Depot,
Herlong, California, 37 FLRA 1439, 1445 (1990) (Sierra Army
Depot). In that case, we found that, by providing for an
employee who was unable to supply a urine sample of
sufficient volume to leave and return the next day, the
provision at issue was inconsistent with section 2.2(f)(10)
of the final Guidelines, which provides that the employee
may be given liquid to drink and that the collection site
person is to contact the appropriate authority for
guidance. Because Provision 9 similarly allows an employee
who is unable to provide a urine sample of sufficient
volume to leave the collection site and return the next
day, rather than to remain, while additional fluids are
consumed and until guidance is received from an appropriate
authority, the provision is inconsistent with section
2.2(f)(10) of the final Guidelines.

In our decision in Sierra Army Depot, 37 FLRA at
1447, moreover, we stated that in future situations
involving similar proposals or provisions, we would follow
the decision in Sierra Army Depot, rather than the
Authority's decision in Customs Service, which was decided
prior to the publication of the final Guidelines.

Accordingly, consistent with our decision in Sierra
Army Depot, we find that Provision 9 is inconsistent with
section 2.2(f)(10) of the final Guidelines, which are
Government-wide regulations. Therefore, Provision 9 is
nonnegotiable under section 7117(a)(1) of the Statute.
Because we have found that Provision 9 is inconsistent with
a Government-wide regulation and is nonnegotiable under
section 7117(a)(1) of the Statute, we need not consider the
other arguments raised by the parties.

X. Provision 10

Section 54

No employee shall be disciplined who voluntarily
admits his or her drug use, completes counseling
or an EAP, and thereafter refrains from drug
use. The Employer is not precluded from
administering discipline for reasons unrelated
to the admission of drug use.(6)

A. Positions of the Parties

1. Agency

The Agency asserts that Provision 10 violates
management's right to discipline under section
7106(a)(2)(A) of the Statute. The Agency
compares Provision 10 to proposals which the
Authority has found to be nonnegotiable. Those
proposals would limit action against employees
whose illegal drug use resulted in an act or
omission which was cause for discipline.

The Agency contends that the Authority has
misinterpreted Section 5(b) of Executive Order
No. 12564. According to the Agency, the
Executive Order states that discipline is not
required if the employee meets the criteria
listed in the Executive Order. That is, the
employee must voluntarily identify himself as a
user of illegal drugs or volunteer for drug
testing, prior to being identified through other
means; the employee must obtain counseling
through an employee assistance program; and
thereafter the employee must refrain from using
illegal drugs. However, the Agency asserts that
although discipline is not required if the
employee meets the above criteria, the Agency
may still impose discipline against the employee
if it chooses. The Agency states that Provision
10 would prohibit management from taking
discipline, even where it believed discipline
was warranted.

The Agency claims that the proposal is broad,
limiting its ability to impose discipline where
an employee attends a rehabilitation program.
The Agency states that this violates the
interpretation of the Rehabilitation Act adopted
by the Merit Systems Protection Board (MSPB).
The Agency cites Hougens v. U.S. Postal Service,
38 M.S.P.R. 145 (1988) (the Board held that
lesser disciplinary actions coupled with a
referral to a counselling program may be
appropriate as a form of reasonable
accommodation under the Rehabilitation Act, 29 U.S.C. § 791 et seq.). Accordingly, the Agency
asserts that under Provision 10, the Agency
would be precluded from taking appropriate
disciplinary action, authorized by the Executive
Order and the MSPB, irrespective of the
circumstances, even if the discipline would
benefit the employee by impressing upon him or
her the seriousness of the misconduct as well as
enforcing the Agency's commitment to a drug-free
workplace. Therefore, the Agency contends that
Provision 10 is nonnegotiable.

2. Union

The Union states that Provision 10 prohibits
disciplinary action against employees who
voluntarily admit their drug use and
successfully undergo rehabilitation. According
to the Union, this provision is not intended to
preclude the Agency from being able to
discipline an employee who warrants discipline
for non-drug related reasons.

The Union argues that Executive Order No.
12564 treats employees who voluntarily admit
drug use differently from those who test
positive. The Union states that Section 5(b) of
the Executive Order requires discipline against
employees found to use illegal drugs, but that
disciplinary action for those who meet the
criteria, as set forth in this provision, is
discretionary. The Union asserts that the
Authority has long held that an agency is free
to negotiate within the scope of its
discretionary authority, and the Agency has
acknowledged its discretion in this area.

According to the Union, the Authority
precedent relied on by the Agency is
inapplicable. The Union contends that its
proposal is like a proposal found to be
negotiable by the Authority in National
Federation of Federal Employees, Local 2058 and
U.S. Army Aberdeen Proving Ground Installation
Support Activity, 31 FLRA 241, 248 (1988). The
Union asserts that because this provision
"exactly tracks" the Executive Order it is
sufficient to overcome the Agency's contention
that it excessively interferes with its right to
discipline. Response at 18. Even if the
Authority finds that Provision 10 does interfere
with the Agency's right to discipline, however,
the Union contends that it constitutes an
appropriate arrangement for employees adversely
affected by the exercise of a management right.

B. Analysis and Conclusions

Provision 10 contained one sentence when the
Union submitted its petition for review. The
Union added a second sentence to the provision
in its statement of intent, which was filed
before the Agency's Statement of Position. The
Agency addressed the amended Provision 10 in its
Statement of Position and did not raise an
objection to the addition. The additional
sentence incorporates into the provision itself
the Union's stated intent. Because both parties
have fully expressed their positions as to the
provision, we will consider the amended
Provision 10 in the interest of assisting the
parties in resolving this negotiability
dispute. SeeAmerican Federation of Government
Employees, Local 2429 and U.S. Department of the
Air Force, Headquarters Space Systems Division,
Los Angeles, California, 38 FLRA 1469, 1471
(1991).

Provision 10 would insulate from discipline
employees who voluntarily admit their drug use,
complete counseling or an employee assistance
program, and thereafter, refrain from drug use.
The Union has added that the Agency is not
precluded from disciplining employees for
reasons unrelated to the admission of drug use.
The Union states that Provision 10 "does not
apply to an employee whose drug use or behavior
in general creates justification for discipline.
This [provision] applies only to those who
freely admit drug use, complete counseling,
refrain [from] future drug use and have
committed no act or omission warranting
discipline." Response at 18. Because the
provision, as worded, precludes discipline only
for drug use and not for conduct that results
from drug use or for conduct unrelated to drug
use, we find that the Union's explanation is
consistent with the terms of the provision and
we will adopt that interpretation for purposes
of this decision.

Provisions which preclude discipline against
employees only for drug use when those employees
voluntarily disclose their use of drugs, undergo
rehabilitation, and remain drug free, are
consistent with Section 5 of Executive Order No.
12564 but directly interfere with management's
right to discipline employees under section
7106(a)(2)(A) of the Statute. American
Federation of Government Employees, Local 1692
and U.S. Department of the Air Force, Mather Air
Force Base, California, 40 FLRA 868, 873-75
(1991) (Mather Air Force Base). However, the
Authority has found that such provisions do not
excessively interfere with management's right to
discipline, but constitute negotiable
appropriate arrangements under section
7106(b)(3) of the Statute. Specifically, the
Authority has concluded that the benefit to
employees of such a proposal--that is, of being
exempt from discipline if they voluntarily
disclose that they use illegal drugs, enter
rehabilitation, and refrain from using drugs
thereafter--outweighs the burden imposed on
management's right to discipline. Id.

Consequently, because Provision 10 precludes
discipline against employees only for drug use
when those employees voluntarily admit their
drug use, undergo rehabilitation, and remain
drug free, we find, consistent with our decision
in Mather Air Force Base, that Provision 10 is
consistent with Section 5(b) of Executive Order
No. 12564 and that it directly, but not
excessively, interferes with management's right
to discipline under section 7106(a)(1). We
conclude, therefore, that Provision 10 is a
negotiable appropriate arrangement under section
7106(b)(3) of the Statute.

XI. Order

The Agency shall rescind its disapproval of
Provisions 2, 3, 6, 7, 8, and 10.(7) The
petition for review is dismissed as to
Provisions 4, 5, and 9.

APPENDIX

MEMORANDUM OF AGREEMENT

The parties hereby acknowledge that provisions
in all negotiated agreements between the Bureau
of Alcohol, Tobacco and Firearms and the
National Treasury Employees Union which are
preceded by the phrase, "Management has
determined" or, "the Employer has determined"
are management rights which have been included
in the contract unilaterally for informational
purposes. It is understood that these
provisions may be changed unilaterally by
management during the life of the contract.
Management acknowledges its obligation to
provide notification to the Union of any such
changes.

FOOTNOTES: (If blank, the decision does not
have footnotes.)

1. The Union withdrew Provision 1 from consideration in its
Response to the Agency's Statement of Position. Accordingly,
Provision 1 is not before us and will not be considered in this
decision.

2. The Union withdrew Provisions 5, 6, and 7 from
consideration in its Response to the Agency's Statement of
Position. Those provisions will not be considered.

3. The Agency refers to FPM Letter 792-16 in its statement
of position. FPM Letter 792-16 was superseded by FPM
Letter 792-19, dated December 17, 1989. In all instances
where FPM Letter 792-16 is cited, we will apply FPM Letter
792-19. However, we note that FPM Letter 792-19 effected
no substantive changes bearing on the appeal in this case.

5. The Union relies on the Authority's decision on
Proposal 38.26, subpart C in Nuclear Regulatory Commission.
That decision did not involve administrative leave, but
time spent on house hunting and relocation after a
reduction in force. See, for example, 5 U.S.C. § 5724 and
41 C.F.R. Chapter 302, especially Part 302-4, Travel to
Seek Residence Quarters.

6. The Union added the second sentence to the
provision, in its statement of intent and in its
Response to the Agency's Statement of Position.

7. In finding Provisions 2, 3, 6, 7, 8, and 10
to be negotiable, we make no judgments as to
their merits.